Attorney General's Reference No. 106 OF 2005

A sentence may be lenient without being unduly lenient. On an Attorney-General’s reference, the court must assess the whole of the offending and mitigation, rather than substitute the custodial sentence it might itself have imposed.

Repeated sexual offending in breach of trust is serious. However, an early guilty plea, genuine remorse, voluntary desistance before complaint, the absence of apparent injury and unusual personal circumstances may mean that a community sentence falls short of undue leniency.

Sentencers must also consider the child-disqualification provisions of the Criminal Justice and Court Services Act 2000 where applicable.

The Attorney General referred as allegedly unduly lenient a sentence imposed at Leeds Crown Court on Kenneth Charles Hunter. He had pleaded guilty to three counts of sexual activity with a person with a mental disorder impeding choice, contrary to sections 30(1) and (3) of the Sexual Offences Act 2003.

The 17-year-old complainant had learning difficulties. The offences occurred on three occasions while the offender was caring for her at her mother’s request. The sentencing judge imposed a two-year community rehabilitation order with a six-month residence condition.

The central issue was whether, despite serious aggravating features, the community sentence was properly characterised as unduly lenient under section 36 of the Criminal Justice Act 1988.

1. The Attorney-General’s reference was dismissed. The court granted leave under section 36 of the Criminal Justice Act 1988, but declined to interfere with the sentence. The sentence was lenient, and a custodial term of 12 to 18 months might have been expected, but it was not of such leniency as to be unduly lenient.

2. The repeated offences and breach of the mother’s trust were clear aggravating features. The court did not accept that the offender lacked true remorse. He had ceased the conduct before any complaint, because he recognised that it was wrong and a betrayal of trust.

3. The court also took account of the complainant’s indication of consent, the absence of apparent physical or psychological injury, the early guilty pleas, the offender’s positive response to supervision and his move away from the complainant’s area. Those unusual circumstances entitled the sentencing judge to impose the community order.

4. As a separate observation, the court said that sentencers should give proper consideration to sections 26 and 28 of the Criminal Justice and Court Services Act 2000, concerning disqualification from working with children. On the facts, the sentencing judge would almost certainly have concluded that the offender was unlikely to commit a future offence against a child, so no such order would have been made.

• Court of Appeal (Criminal Division): Leave was granted on the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, but the court declined to interfere with the sentence.

• Leeds Crown Court: The offender pleaded guilty to three counts and was sentenced to a two-year community rehabilitation order, including six months’ residence at a probation hostel.